613 F.

2d 482

21 Fair Empl.Prac.Cas. 1186,

22 Empl. Prac. Dec. P 30,583
Charles R. GAVIN, Appellant,
v.
PEOPLES NATURAL GAS COMPANY.
No. 79-1375.

United States Court of Appeals,

Third Circuit.
Argued Nov. 13, 1979.
Decided Jan. 16, 1980.
1

Thomas R. Gerety (argued), Pittsburgh, Pa., for appellant.

Ralph F. Scalera (argued), Ralph T. DeStefano, Richard R. Riese, Thorp, Reed

& Armstrong, Pittsburgh, Pa., for appellee.

Lutz Alexander Prager (argued), Issie L. Jenkins, Joseph T. Eddins, Jr.,

Beatrice Rosenberg, James P. Scanlan, Equal Employment Opportunity
Commission, Washington, D. C., Robert E. Williams, Douglas S. McDowell,
Daniel R. Levinson, McGuiness & Williams, Equal Employment Advisory
Council, Washington, D. C., for amicus curiae.

Leo Pfeffer, New York City, for amici curiae Synagogue Council of America
and National Jewish Community Relations Advisory Council.

Daniel D. Chazin, New York City, for amici curiae The National Jewish
Commission on Law and Public Affairs and Anti-Defamation League of B'nai
B'rith.

Dennis Rapps, New York City, for amicus curiae The National Jewish
Commission on Law and Public Affairs.

Justin J. Finger, Jeffrey P. Sinensky, Richard A. Weisz, New York City, of

counsel, for amicus curiae Anti-Defamation League of B'nai B'rith.

Before SEITZ, Chief Judge, ALDISERT, Circuit Judge, and HUYETT, District
Judge.*

OPINION OF THE COURT

9

HUYETT, District Judge.

10

Plaintiff Charles R. Gavin (Gavin), a former service operator for defendant

People's Natural Gas Company (PNGC), has appealed from an Order of the
District Court for the Western District of Pennsylvania granting PNGC's motion
for summary judgment. Gavin instituted this employment discrimination case
under Title VII of the Civil Rights Act of 1964, As amended, 42 U.S.C.
2000e Et seq. (1976), after he had been discharged because of his refusal to
fulfill one of his job assignments. Claiming that this refusal was religiously
mandated, Gavin alleged, Inter alia, that he had been denied reasonable
accommodation to his religion as required by Section 701(j) of the Civil Rights
Act of 1964, 42 U.S.C. 2000e(j) (Section 701(j)).1 In granting summary
judgment, the district court stated that "proceeding to trial on the facts of this
case would necessarily lead to an entanglement of this court with religious
beliefs," Gavin v. People's Natural Gas Co., 464 F.Supp. 622, 632
(W.D.Pa.1979), and thus held that Section 701(j) was unconstitutional as
applied. The questions presented are whether summary judgment was properly
granted, and whether on the facts of this case Section 701(j) is constitutional in
light of the Establishment Clause. Because we believe that summary judgment
should not have been granted, we shall not consider the constitutional issue. We
vacate the order of the district court and remand for further proceedings.

I.
11

Gavin, who is a member of the Jehovah's Witnesses, was employed by PNGC

as a service operator. As part of his work, he was required to raise and lower the
American flag. Gavin refused to do so, asserting that this act violated his
religious convictions. As a result, he was discharged from his employment.

12

Gavin then pursued his claim of unlawful discharge through union grievance
proceedings, challenging the validity of his termination pursuant to provisions
of the collective bargaining contract between his union and PNGC. At the final
grievance meeting held on June 14, 1979, PNGC offered to reinstate Gavin
with full back pay and to reassign him to the job of gas man rather than service
operator.2 Gavin refused this offer, however, and as a result the union decided
not to appeal the grievance to arbitration. Gavin also filed an unfair labor
practice charge against PNGC with the National Labor Relations Board, but

this charge was withdrawn at the direction of the Pittsburgh Regional Office of
the Board after Gavin refused the reinstatement offer. Likewise, the
Unemployment Compensation Board rejected Gavin's claim in light of that
refusal. Gavin had also filed a complaint with the Pennsylvania Human
Relations Commission (PHRC), which dismissed his complaint after
determining that his religion did not mandate his refusal to raise and lower the
flag. An appeal from the PHRC decision to the Commonwealth Court of
Pennsylvania was dismissed. The Equal Employment Opportunity Commission
also considered Gavin's case and issued a Right to Sue letter after determining
that PNGC had violated Title VII. Gavin filed suit in the District Court for the
Western District of Pennsylvania within 90 days of the issuance of that letter,
alleging both racial and religious discrimination.
13

The district court dismissed the racial discrimination claim, noting that it was
without jurisdiction to determine that issue in light of plaintiff's failure to raise
it before the EEOC. 464 F.Supp. at 623-24. The court then considered PNGC's
summary judgment motion, presented on affidavits as well as the record of the
various agency proceedings. The court found that a ruling on whether PNGC
had properly accommodated Gavin's religious beliefs as required by Section
701(j) would necessitate a judicial determination of the tenets of Gavin's
religion,3 thereby involving the court in an entanglement with religion in
violation of the Establishment Clause. Id. at 626-33. Summary judgment was
granted on the ground that application of Section 701(j) would lead to an
unconstitutional entanglement with religion. Id. at 633.

II.
14

While we recognize the importance of the constitutional question posed by this

appeal, we leave its resolution for another day. The general rule, based upon
overriding policy considerations, is to avoid constitutional issues unless
essential to the decision of a case. E. g. Hagans v. Lavine, 415 U.S. 528, 543,
94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); King v. Smith, 392 U.S. 309, 88 S.Ct.
2128, 20 L.Ed.2d 1118 (1968); Ashwander v. TVA, 297 U.S. 288, 346-47, 56
S.Ct. 466, 80 L.Ed. 688 (1935) (Brandeis, J., concurring); Burton v. United
States, 196 U.S. 283, 295, 25 S.Ct. 243, 49 L.Ed. 482 (1905). Determination of
the constitutional issue is unnecessary in this appeal because we find that
summary judgment should not have been granted.

15

Summary judgment is inappropriate if there remains in the case a genuine issue

as to any material fact. Fed.R.Civ.P. 56(c). Here PNGC is charged with failing
to accommodate to Gavin's religious beliefs in violation of Section 701(j). This
raises the constitutional issue only if the court is required to determine whether

the beliefs which PNGC allegedly disregarded were religious. Thus the
constitutional issue presupposes lack of accommodation. However, the question
of whether PNGC accommodated to Gavin's beliefs, assuming Arguendo they
are religious for Section 701(j) purposes, was never resolved. This question
involves a material fact because if PNGC did indeed accommodate to Gavin's
beliefs as required by Title VII, no Title VII violation concerning Gavin's
religion has been established.4 Accommodation remains a genuine issue
because the district court made no findings, and the parties have not stipulated,
as to whether PNGC's offer of reinstatement as a gas man made to Gavin on
June 14, 1979 constituted compliance with the provisions of Title VII which
mandate accommodation of religion. We note that Gavin had fulfilled the
duties of gas man for some period before being assigned work as a service
operator, and thus we can assume that the responsibilities of a gas man do not
conflict with his religious beliefs. However, other factors may have made the
reinstatement offer less acceptable than appears from the current state of the
record. Absent findings as to the nature and effect of that offer, a determination
of whether PNGC complied with Title VII is not possible. Thus a trial is
necessary to determine whether PNGC complied with Title VII by
accommodating to Gavin's beliefs, regardless of their nature, through its offer
of reinstatement as gas man.5
III.
16

Accordingly the judgment of the district court is vacated and the case is
remanded to the district court for proceedings consistent with this opinion.

Honorable Daniel H. Huyett, 3rd, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation

42 U.S.C. 2000e-2(a)(1)-(2) provides:

(a) It shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual's race,
color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment
in any way which would deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect his status as an
employee, because of such individual's race, color, religion, sex, or national

origin.
42 U.S.C. 2000e(j) provides:
(j) The term, "religion" includes all aspects of religious observance and
practice, as well as belief, unless an employer demonstrates that he is unable to
reasonably accommodate to an employee's or prospective employee's religious
observance or practice without undue hardship on the conduct of the employer's
business.
2

Gavin had been employed by PNGC as a gas man prior to his assignment as a
service operator. The latter assignment was required by Gavin's seniority under
the normal operation of the collective bargaining agreement between Gavin's
union and PNGC

PNGC disputed Gavin's assertion that his objection to raising and lowering the
flag was religiously based

See note 1 Supra

The constitutional issue need be reached only if it is determined that no proper

accommodation was offered. Because the parties do not agree that Gavin's
beliefs are religious, the question of what constitutes religion for Section 701(j)
purposes must then be determined. This, of course, again raises the
constitutional issue we leave undecided